Bhopal gas leak case: all is not lost

In this on June 15, 2010 photo activists from various human rights organisations and NGOs participate in a protest rally near the U.S. consulate in Kolkata demanding extradition of Union Carbide ex-head Warren Anderson.

The government should arrange for a current calculation of compensation requirements, provide the balance funds, and ensure speedy disbursement.

The verdict in the Bhopal gas leak criminal case convicted officers of Union Carbide India Ltd (UCIL) for rash and negligent acts causing death, and imposed the maximum penalty of two years. The offence arose from the leakage of methyl isocyanate gas on December 2, 1984 from the company's factory, which caused the death of several thousands of people and maimed several lakhs. Predictably, there is outrage not just at the disproportion between the consequences of the act and the sentence. It is deeper because the victims have got a raw deal on all fronts. A Group of Ministers, now examining action, met on Friday and is to finalise the recommendations shortly.

A revisit of events shows that the Government of India (GoI) bears responsibility in several ways. It allowed the plant to be located in a thickly populated area, with the knowledge that it was handling toxic gas. Its inspectors failed to enforce safety standards. Its culpability increased several fold after the world's worst industrial disaster took place.

The GoI took over the right to litigate, exercising the power of parens patriae, and thus prevented the victims from filing suits through their lawyers. It did not match this power with results or responsibility. It filed a suit in the U.S. court where it laid a claim for $3 billion on behalf of the victims. The last thing the Union Carbide Corporation USA (UCCA), the holding company, wanted was to be a defendant in its home country. It would face American tort lawyers, the most aggressive breed of the legal profession, who commonly secure verdicts or settlements for huge sums. The case would come before judges who are used to managing mass party actions efficiently, and a jury of common people, who could be expected to react to the magnitude of the suffering. The GoI lost on the preliminary issue of jurisdiction; Judge Keenan of the U.S. District Court sent the case to India. Round One to UCCA.

During the 26 long years taken to give the verdict ( the responsibility for which is also laid at the door of the Indian legal system), two major events took place, ensuring that the case was a lost cause even before it went to trial. On February 14, 1989, the GoI agreed to a settlement with UCCA before the Supreme Court. It agreed to accept $470 million, 15 per cent of its claim, in full settlement of all civil and criminal claims arising out of the disaster. (Round 2 to UCCA).

The GoI's justification was the delay in Indian courts, and the immediate necessity of providing relief to the victims. The protective parens patriae did not think it fit to provide such interim relief from its resources, which would have made this settlement unnecessary. The GoI did not give the Bhopal victims prior notice of the settlement. The resulting outcry led to the Supreme Court modifying it two years later; the criminal cases were resuscitated; the monetary settlement and cessation of civil liability stayed undisturbed. However, Justice M.N. Venkatachaliah, writing for the majority, held that if the figure of $470 million was not adequate to compensate the victims, the GoI should make good the deficiency. This arose, he said, from the circumstances of the case and the obligations of a welfare state. A dissent on this aspect was entered by Justice A.M. Ahmadi, who asked why the Indian taxpayer should be burdened with this liability when the government had not agreed to bear this liability and was not guilty of wrongdoing.

In 1996, a two-judge Bench diluted the charge from Section 304 para 2 ( knowledge that the act would cause death ) to Section 304 A (rash and negligent act causing death) of the IPC. The penalty came down from 10 years to 2. (Round 3 to both UCCA and UCIL). The GoI defended the case and lost it. It is settled law that the court does not interfere with the trial of a case unless the complaint or charge sheet, accepted without demur, does not make out the offence. The charge sheet clearly stated that the factory in Bhopal was deficient in many safety aspects, its design and safety measures provided by UCCA were deficient, safety norms were not adhered to, factory officers failed to alert the district administration in time, and that all concerned had knowledge that the release of the gas would cause lethal destruction.

The District Court and the High Court found that a prima facie case had been made out by the prosecution requiring the accused to face trial. It would take the strongest legal reasoning to reverse this stand especially given the facts of the case. Justice Ahmadi's reasoning, contained in one paragraph, fell well below this mark. He startlingly held that “Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC, the mere act of storing such a material by the accused … could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause the death of human beings.” In his view, the charge had to make out that the accused had knowledge that by the very act of operating the plant “on that fateful night,” they were likely to cause death. This would mean that the knowledge and the acts are restricted to that fateful night. Logically, it would follow that only the plant operators on duty that night would be liable; those who designed and operated it with deficient safety systems would not be. The GoI accepted this judgment, failed to ask for its review or for a larger Bench to hear the matter, considering that the court was dealing with a disaster of epic proportions.

The Group of Ministers will doubtless examine the legal options of reviewing the Ahmadi judgment, and securing Warren Anderson's presence (he jumped bail, and UCCA and he were declared absconders after they kept away from the trial in Bhopal.) The GoM may also examine if civil and criminal proceedings can be launched in the U.S. against Union Carbide and Mr. Anderson. Judge Keenan's order would be no defence for them, since he predicated it on their accepting the jurisdiction of the Indian courts. All these are difficult courses given the passage of time, conclusion of the trial and the cap on civil and criminal liability.

One remedial action remains, which is what the victims need foremost, and that is entirely in the hands of the GoI. Justice Venkatachaliah made it clear that the GoI would be liable to make good any shortfall in the compensation amounts. The compensation of $470 million was premised upon the number of about 3000 deaths and 30,000 injured. Over the years, the death and injury toll attributable to the gas leak is far higher than what was then officially recorded, with succeeding generations inheriting the health and environmental disabilities. A recent estimate puts the figure at 5,74,367 victims. The GoI should now arrange for a credible current calculation of compensation requirements (its claim in 1986 was for $3 billion), provide the balance funds itself and ensure speedy disbursement. Public policy and moral and legal considerations demand that it does so.

Aptly said by K.MARX, it's a "CLASS WAR" (between have and have nots)all around.The verdict by the trial court after a period of 25years has, that inherent element in it.Everything, from moving ANDERSON out of state with the help of bureaucratic and political elite and well defined piece of trial uner Sec 304 A Shows that there are two laws- "ONE FOR THE MASSES AND ONE FOR THE CLASSES".AND IT'S A PROVED FACT THAT justice i.e, objective justice is still a dream for the MASSES in this hacked system.THE WAY "BHOPAL GAS TRAGEDY" HAS BEEN HANDLED THROUGHOUT FROM IT'S INCEPTION IT CAN BE APTLY SAID, THAT JUSTICE FOR THE MASSES IS A MYTH.ANOTHER POINT IS -POLITICIAN HAS SHOWN A WAY TO EARN MONEY AND VOTE ON THE DEAD BODY OF INNOCENT MASSES (25,000 DIED AND NUMEROUS SUFFERED AND IS STILL SUFFERING).THE QUESTION IS-
WHOM THESE POLITICIANS ARE REPRESENTING? HOW CAN A MASS JUSTIFY SYSTEM , WHERE EVERYTHING IS DECIDED BY ELITE ?

from:
S.NISHANT

Posted on: Jul 6, 2010 at 17:35 IST

I wonder to read " Bhopal Gas Leak All is not lost". I want to know what is left to lose? Loss of lives of many thousands and permanant diability to many thousands. Money won't bring back lives or cures disability.Compensation is just a lips sympathy nothing else. Its doubtful how much money goes to the victims and how much in to the pockets of politicians.

from:
V H Deshpande

Posted on: Jul 1, 2010 at 06:09 IST

Holding BP responsible for the disaster in the Gulf of Mexico, US President Barack Obama demanded that BP take responsibility. BP pledged to allocate US$20 billion to assist the affected. Explaining the Bhopal disaster, Indian Prime Minister Manmohan Singh is reported to have said, "Bhopals will happen, but India must progress." Well, let us see what his Group of Ministers now comes up with.

from:
A Mukherjee

Posted on: Jun 22, 2010 at 05:25 IST

The Bhopal gas tragedy revisits us with all its consequences,and implications.It highlights the failure of the legal and justice-delivery system in giving relief to the victims. The author also suggests that GOI should provide the balance of amount of $ 3 billion agreed upon in 1986, as per Justice Venkatachaliah's judgment also taking into account the subsequent sufferings of victims. Compensation to victims must also take the value of the current money value at $ 3 billion in 1986. No one knows why such a sensitive issue has been recklessly erased from collective memory and is now presented with all its grotesque consequences.

from:
G.Naryanaswamy

Posted on: Jun 21, 2010 at 20:49 IST

There may be different standards of judging the negligence of multinational industrial giants like British Petroleum and Union Carbide by an US administration and its peoples representatives. They have gone into very commendable overdrive to correct a disaster situation around their coastline and make BP responsible for comepnsation to their citizens. The GoI should with active US compliance have been able to deal with Union Carbide in the same way. Or, may be at least now test the new found will of the US for justice and help for the victims of such damage far from their own shores.

from:
Moolamanil Thomas

Posted on: Jun 20, 2010 at 18:46 IST

The writer forgot to mention one important point. Anderson was given the assurance by the GOI that he would be given "safe passage" thru' India. But when he landed in India he was arrested. That showed extreme bad faith on the part of Indian authorities which were bent on taking revenge rather then securing justice.

When Anderson came to India, Rajiv Gandhi and his senior staff should have sat down with him in a meeting and gotton his assurance that Union Carbide USA would clean up the site, provide adequate rehabilitation and compensation for dead and injured, and bring the plant up to safety standards so it could once again give employment to the people of the region. I'm sure Anderson would have agreed to all this, just as BP agreed when Obama spoke to them. Anderson personally was not responsible since he was a "non-managing" director of the parent company, but Union Carbide USA as a company had plenty of assets to provide for the compensation.

Instead of behaving in a mature, responsible way on behalf of the people of India, the government showed utmost irresponsible behavior by arresting Anderson, acting confused and clueless. No wonder Anderson never wants to set foot on India again, and UC USA settled "all the claims" for $470 million. There is NO LEGAL CASE against Union Carbide USA or Dow anymore. It has all been settled for $470 m.

from:
K. Raghunathan

Posted on: Jun 19, 2010 at 19:17 IST

It took 26 years to settle this case that would have not taken more than a few weeks in U.S. !!
Moreover, this is seriously an unbelievable blunder:
"On February 14, 1989, the GoI agreed to a settlement with UCCA before the Supreme Court. It agreed to accept $470 million, 15 per cent of its claim, in full settlement of all civil and criminal claims arising out of the disaster. (Round 2 to UCCA)."
15% of its claim!?

from:
Abhishek Sainani

Posted on: Jun 19, 2010 at 18:08 IST

Don't know if everything is lost. But, surely, something precious has been mortgaged or made to loose, i.e. the self-respect of a nation of billon plus.

from:
KVSKumar

Posted on: Jun 19, 2010 at 17:48 IST

The US courts are highly unlikely to try one of their own citizens for a crime overseas. Instead there needs to be a step up in the mass protest action against Anderson and Union Carbide. There is a need for a propaganda drive which gets information out in the public domain, especially in the US itself, which names and shames Anderson, and attempts to boycott the products of Union Carbide worldwide.

The GoI must compensate the victims by making up any shortfall. The Government if formed out of the servants of the people of India. It is not a private enterprise which considers profits and losses. There is a massive responsibility on the part of the GoI to ensure the welfare of all Indian citizens. Let us see what the GoM decides.

from:
Samir Mody

Posted on: Jun 19, 2010 at 13:47 IST

The U.S based parent Company UNION CARBIDE CORPORATION was very keen on keeping aloof from the Indian Subsidiary. It had agreed for a reasonably modest compensation of US$ 470 million as per the deal in 1989 on the condition that it would construct a hospital upon the sales proceeds while disposing of Indian operations in 1992. I have no idea whether the hospital is built or not even after it’s takes over by DOW CHEMICALS in the year 2001 from the Indian Subsidiary.

The Bhopal disaster had killed thousands instantly as well as slowly during the past two and half decades due to the chronic illnesses. More than 500,000 people were affected by gas-related diseases. The cry of villagers to the Michigan-based Dow Chemical, the company that bought Union Carbide to clean up the soil and underground water at the factory site and the surrounding shanties, which were contaminated with carcinogenic chemicals such as benzene and mercury, had fallen into deaf ears. Many unfortunate families in the surrounding villages continue to suffer from chronic illnesses such as poor eyesight and respiratory and gynecological problems. What is the remedy for their plight? GOI must come out with a white paper on this episode of the tragedy and its course of action to support them.

from:
Prof.Madan Menon Thottasseri

Posted on: Jun 19, 2010 at 07:05 IST

If this report is anything to go by and if the GoM can be relied upon to recommend suitable compensation and monetary relief to the victims and their relations,it still remains to be seen whether the GOI will deliver justice and provide the balance funds and speedy disbursement.The matter would not end there.The dramatis personae who facilitated Anderson to escape the long arm of the law and those who aided and abetted these people should also be proceeded against and brought to book.The role of everyone however high should be meticulously examined without indulging in any cover-up operation
and punishment given to them commensurate with their culpability.

from:
Raj Kumar

Posted on: Jun 19, 2010 at 06:15 IST

The Congress party,which has been ruling the country before and for most of the time after the Bhopal tragedy, should admit that it let down,in an inexcusable manner,the people who have been putting it in office in election after election . But its first priority today seems to be to salvage the image of Rajiv Gandhi which has been gravely tarnished by the recent exposures about the Bhopal disaster and its aftermath. Mercifully the Indian media seems to be not on its side.

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